As Divorce Lawyers, this is one of the most pressing concerns facing our clients. The most significant asset that many families have is the family home. To most people, the house is more than just a house, it is a family home. It has special significance to both spouses and can often be a cite of contention within the separation process.

The Ontario Government recognized the special place the matrimonial home plays in many families and has created special rules for how the home is to be treated within the divorce process. This blog post will address some of the main questions people have concerning the matrimonial home including:

What is a matrimonial home

How is the matrimonial home treated in property division

What does possession of the matrimonial home mean

What happens when parties can’t agree what is to happen to the matrimonial home

What can you do to protect your home in the event of a divorce

It is important to note at this stage, that this post is intended only for married spouses. There are separate legal considerations that are relevant to your situation if are cohabiting spouses (otherwise known as “common law” spouses).

What is a matrimonial home?

The Ontario Family Law Act defines a matrimonial as “Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home”. For example, if you buy a house prior to the date of marriage and your spouse moves in with you after you are married, this house becomes your matrimonial home because it is ordinarily resident by you and your spouse.

The definition of matrimonial home also does not limit the designation to only one home, as it includes “every property …”. For example, if you also have a cottage, which you and your spouse spend time a significant amount of time at. This cottage may be considered ordinarily occupied by you and your spouse as a matrimonial home and will be treated as such, even though it is not your primary home.

It is also possible for a house to lose its designation as a matrimonial home. Let’s say you retire. Upon retiring you decide you want to move to the cottage and no longer want to live in your home. You then rent out the house for income, and no longer reside there. This house is no longer considered a matrimonial home, because the parties are no longer ordinarily resident there. The house will then loose its designation as a matrimonial home and be treated similar to any other asset in family decision process.

How is the Matrimonial Home Treated in Property Division?

In order to understand how the matrimonial home is treated in property division, it is important to have a basic understanding of how property division work. Basically, each party determines their net family property and then the party with a higher net family property is responsible for paying half the difference between the two amounts. In order to calculate net family property, both parties take their total assets on the date of separation and subtract their total debts as well as anything property which is exempt from property division, such as inheritance or gifts. Each party then subtracts the value of their pre-marriage property from their separation date property. These numbers are compared, and the party with the higher number must make an equalization payment.

The matrimonial home is given special treatment within property division in several respects. The first is that if a party owned the matrimonial home on the date of marriage, the pre-marriage value of the home cannot be subtracted. For example, you owned a home worth $300,000.00 on the date of marriage. The home is worth $500,000.00 on the date of separation. You cannot deduct the $300,000.00 as pre marriage property, as you would be able to do with other assets. You must include the entire $500,000.00 as part of your net family property

Another way that the matrimonial home is treated differently is that exemptions related to gifts and inheritance does not apply, if they were used to buy or improve a matrimonial home in some way. Typically, inheritance and gifts are exempt from equalization and therefore are not included in equalization payments. In addition, assets to which gifts and inheritance can be traced are also exempt from equalization. However, once these gifts or inheritances are used to improve the matrimonial home, an exemption can no longer be claimed. For example, let’s say you inherit $30,000.00 from a relative. This amount would typically be exempt. If however, you use it as a down payment to buy a new house; you lose the protection of this inheritance.

A further issue arises if you inherit a house and decided to use it as the family home. A house that would otherwise be exempt as inherited property loses its exemption when you and your spouse decide to live there. For example, if your mother leaves you a beautiful fully detached Victorian home in downtown Toronto, and you decide to live there with your wife and kids, the entire value of that property will be included in your net family property calculation for purposes of equalization.

What Does Possession of the Matrimonial Home Mean and Should I be Concerned?

It comes as a surprise to many people that, in property division, spouses do not share in the underlying property itself, but in the increase in value of the property across the marriage. This means that if you own a house, you still own that house upon equalization, even if the house was the matrimonial home.

It is important however, to distinguish ownership form possession. In other words, you can potentially own something but not be in possession of that thing. A good example is if you lease a rental property to someone else. While you are still the owner of that property, you have a contract setting out that your tenant will have the right to possess the property for a fixed or indefinite period of time.

There are also special provisions surrounding possession of the Matrimonial home. First, spouses have an equal right to possession of the matrimonial home while they are spouses. This means that you cannot unilaterally exclude your spouse from the matrimonial home, even if you own it. This remains true after separation, until the parties are no longer spouses, or there is a separation agreement or court order that addresses this issue.

A spouse may apply to the court for exclusive possession of the matrimonial home. This means that regardless of ownership of the house, one spouse may be excluded from the property for a period of time that the court directs. There are several factors a court will consider in deciding whether to order exclusive possession of the matrimonial home. These include the best interests of any children affected, any existing property orders and any existing support orders or obligations, the financial position of both spouses, any written agreement between the parties, the availability of other suitable and affordable accommodation, and any violence committed by a spouse against the other spouse or children. A spouse to whom exclusive possession is order may be required to pay occupation rent to the other spouse.

If an order for exclusive possession is made against you, it is important that you follow it. There can be significant consequences for breaching an order for exclusive possession. This includes a fine up to $5000.00 or a prison term of up to three months or both for a first breach. In the case of a second breach, a court may order a fine of up to $10,000.00 and to imprisonment for a term of not more than two years or both,

What if We Cannot Agree on What to Do With the Matrimonial Home?

If the parties both have a property interest in the home and are unable to agree on what to do with the matrimonial home, one party may apply to court for an order of partition and sale. The court will order that the parties are to sell the house and split the proceeds based on their interest in the property. There is no right of first refusal within family law. If the house is ordered to be sold, the party wishing to stay in it, must bid on the open market with all other buyers.

I Have a Home and I am About to Get Married. What Can I Do to Protect My Home?

If you own a home or are contemplating buying a home for you and your current or future spouse to move in with, you may consider entering into a domestic contract with your spouse. A domestic contract is an agreement between you and the other party that sets out each party’s rights and obligations upon separation. For example, if you own a home, part of the agreement might say that the home will not form part of net family property. This means that your house will not be considered as part of your net family property when you determine whether or not an equalization payment is owed. A domestic contract can be negotiated either in anticipation of marriage or after a marriage has already happened. It is important to note, however, that possession of the home cannot be subject to a domestic contract. Courts always retain discretion to grant one party possession of the matrimonial home for a period determined by the courts.

If you decide to enter into a separation agreement, it is important that you retain a lawyer to help you with the process and give you legal advice. The lawyers at Galbraith Family Law (GFL) have assisted many clients in negotiating and drafting domestic contracts. Retaining one of our lawyers will ensure you comply with all of the requirements required to enter into a valid domestic contract and that the contract itself is clear, concise, and anticipates issues which may arise in the future.

Are dogs and cats just property? No, they are not. In Ontario, there is case law to say that dogs in particular have “feelings, are capable of affection, need to be shown affection and that a dog’s affection can be alienated; that its needs must be provided for and that, generally, it must be treated humanely and with all due care and attention to its needs and that these factors are to be considered as well in determining the right to possession or access thereto.”

Where there are competing claims for family pets, the court should be mindful of the fact that inanimate objects should be treated differently from family pets.

A 2001 IPSOS-Reid research study found that “Eight in ten of the pet owners … (83%) consider their pet to be a family member; only 15 percent said they love their pet as a pet rather than as a family member. This perception of the pet as family translates into ‘parental’ behavior for many pet owners: seven in ten (69%) pet owners allow their pets to sleep on their beds and six in ten have their pet’s pictures in their wallets or on display with other family photos. Almost all pet owners (98%) admit to talking to their pets.”

The nature of the relationship between an owner and a pet dog is qualitatively different from the relationship between an owner and all other forms of personal property. Most people view a pet as “a member of their family to be cared for until death, not a possession to be bought and later sold in a garage sale or on craigslist or given away to charity when it is worn, outgrown, out of date or no longer needed or desired by its owner.”

The treatment of the dog or cat in the custody of the owner and the best interests of the dog or cat are factors that can and must be taken into account in family law proceedings.

You may be wondering whether you can count on the family law court to help you if you have suffered non-physical abuse.

There are different forms of non-physical abuse that can be viewed as domestic violence. Your partner may harass or intimidate you by making threats against you to cause you to fear for your safety. He/she may send you repeated emails or texts; using derogatory language against you; using the litigation process to harass you; threatening to go bankrupt or to become unemployed to avoid paying child/spousal support; damaging or threatening to damage your property; using financial restrictions to control you; isolating you from family and friends to control you; stalking; exposing the children to threats of violence against you; making disparaging remarks against you to the children; disparaging you in front of teachers, friends, and others. Cumulatively or individually depending on the extent of such behavior, the court may conclude that you are a victim of abuse.

Domestic violence is not arguing with your spouse or demanding behavior by your spouse; it is not a situation where you are equally combative; it is not provocation where your spouse says something to “push your buttons”. In essence the family law courts do not require us to be “nice people” to each other.

Family courts have accepted that exposure to domestic violence can be harmful for children. Such exposure can take many forms including hearing a violent event; witnessing the abuse of a parent or sibling; intervening; being used as a shield against abusive actions; experiencing the aftermath of a violent event including police involvement. The impact of exposure of domestic violence can be long-lasting and can impact the child who becomes depressed, anxious, has low self-esteem, engages in substance abuse, and has an inability to form trusting relationships with others.

The difficult task is to prove family violence. Family violence often takes the form of a he-said, she-said scenario, in which proving the violence turns largely on the court’s assessments of each party’s credibility. You must be able to provide evidence of controlling and coercive conduct and of exposure of such conduct to the children.

In criminal courts, domestic violence must be proved beyond a reasonable doubt. In family court it must be proved on a balance of probabilities. In criminal court it is the crown and police who are responsible for presenting the evidence. In family court you must prove your case against your partner.

If family violence is proved in family court then there are several possible court orders that the court can make. The court can order exclusive possession of the matrimonial home; child/spousal support and supervised access by the abuser to the children at a supervised access centre or to be supervised by a trusted adult. The family court may also issue a restraining order against the abuser.

The form of parenting arrangement ordered by the court can vary depending on the circumstances. The court will consider such factors as whether the violence was an isolated incident, relatively minor (a shove), out of character, accompanied by genuine remorse, responsibility taking, and did not induce fear. If so, then joint custody and shared parenting may be one possible court order.

Joint custody means joint decision-making. This type of parenting arrangement may entail children residing with a primary caregiver or alternating weeks between caregivers. In either case, the parents must jointly decide on all major decisions affecting the children regardless of who may be the residential parent. Where there has been a clear history of poor communication, coercive interactions, inability to problem-solve, and a lack of child-centred focus by one or both parents joint custody is unlikely to be ordered. A serious mental health problem or substance abuse suffered by one or both parents would also not lead to such a parenting arrangement.

Another parenting arrangement is parallel parenting. The children may alternate weeks in living at each parents home with each parent being independently responsible for decisions and having ultimate decision making authority while the child is in their care. This arrangement is structured to minimize contact between the parents and protect the children from exposure to ongoing parental conflict. Such an arrangement is possible where each parent is equally capable but engages in intense conflict with the other parent and the structured parenting regime alleviates such conflict.

Sole custody means that one parent is clearly in charge of all major decisions and the non-custodial parent generally has more limited child contact but access to important information about the children (e.g., school reports). There may be a sole custody arrangement without supervised exchange or access or with supervised access/exchange.

Rarely does the court order that there shall be no contact unless the parent presents an ongoing and significant risk of violence.

The family court does protect you and your children in the case of non-physical abuse but you must prove your case with evidence of behavior that has caused you fear for yourself and/or for your children.

This can be an exciting time for some kids and maybe a bit upsetting for others. For parents that are separated, it can be an especially stressful time. Questions come up about how much time the children should be spending with each parent or how the school holidays and PA days are going to be shared. After- and before-school care, school supplies, and fees for extracurricular activities can add up quickly, and it can just as quickly turn into a disagreement about who should be paying for these expenses. Then there are those awkward situations like parent-teacher meetings and other school events where both parents want to be there for their kids.

It doesn’t just end when your kids graduate high school. These questions continue and new issues arise when your kids are starting college or university. In family law, children that attend post-secondary after finishing high school are considered to still be in need of support. But, does Child Support change if they are living away during university? If they are living in residence, does that expense have to be covered by the parents? What if the child is also paying for some of their own expenses?

You want to sort out these issues without getting the children involved, but, you don’t know where to start. To help you navigate these difficult issues, contact us at Galbraith Family Law where one of our experienced Family Lawyers can answer all of your questions. Click here to book your initial consultation.

As most families are aware, the new Canada Child Benefit (“CCB”) effective July 1, 2016 is the replacement for the Child Canada Tax Benefit (“CCTB”) & the Universal Child Care Benefit (“UCCB”). Prior to the implementation of this new regime, we often found parties with a shared parenting arrangement negotiating the rotation of benefits and we often saw arrangements where one parent would have the benefits on even numbered years and the other in odd numbered years because Revenue Canada would not split the benefit between the parties monthly. Under the new regime, where there is a shared parenting regime, each eligible parent will get 50% of the payment he/she would have received if the child lived with them all of the time. There is no option to change this under the new legislation.

The good news is, that in the case of the CCB, parents earning what they were earning under the old regime, will be getting more monies than they received via CCTB and UCCB. However, because these benefits are higher, we see a reduction, in most situations, of spousal support as a result. If you have any other questions on how this and other recent court decisions impact spousal support, feel free to contact our office to speak with one of our lawyers.

The Office of the Children’s Lawyer (OCL) is a government agency that represents children in custody and access proceedings. A judge cannot order that the OCL act for a child but simply can “request” that it do so. The government agency has the discretion to,
• decide whether to have a child’s lawyer appointed;
• decide whether to have a child’s lawyer with social work assist appointed or;
• decide whether to have a best interest assessment conducted by a social worker.

If the OCL decides to accept the case, the parents have no choice over the selection of lawyer or social worker and cannot insist upon a best interest assessment being conducted. You can expect delay in having an OCL lawyer/social worker becoming involved. It’s the government that makes these choices about your family.

There is an alternative…

I can help you. You can hire me privately to be your children’s lawyer. I team up with a social worker and together we can speak to your child to ascertain his/her views and preferences. We can also perform a best interest’s evaluation. I will even set a flat-fee so you know the costs in advance. It is cost-effective, fast and we can assure you that the work is performed by highly qualified and experienced professionals.

If you are in the process of separating, I know you have that friend. That already divorced friend – the one that is telling you it gets worse before it gets better. The one that says it’s a process.

Your friend is right. Don’t discount what they’re saying. There is lots of literature on the four emotional stages in your separation/divorce journey. These are described as:

Shock

Crumbling

Acceptance and

Relief

While they are listed here as stages 1-4, people don’t necessarily experience them in that order and they may think they are progressing to the next stage only to be triggered by an experience and find themselves back in an earlier emotional stage.

It is important to understand that when you are in shock, experiencing mood swings, having difficulty sleeping, blaming your spouse, caught up in anger, feeling guilt, fear and shame, the feelings you are experiencing are completely normal. However, it is not the time to negotiate the terms of your separation or divorce.

While it is important at the outset to seek advice and learn what your rights are, if you have the aforementioned emotions, you are not really ready to negotiate the terms of your separation agreement or divorce. Start that process when you can commence envisioning your future, and are able to consider the impact of decisions on all parties, children included. In the meantime, you are welcome to contact our office to find out what your rights are.

Written by Anna Preston, a lawyer at Galbraith Family Law. Here is a link to Anna’s profile. To book a consultation with Anna, please go our website.

Do you want your child to be heard in your separation/divorce? Are you in mediation and want your child to have a say in the parenting plan? Are you in the midst of court proceedings and were turned down by the Office of the Children’s Lawyer? Has your lawyer recommended an assessment that you both can’t afford? I can help.
I can give a voice to your child in your separation/divorce. You and your spouse jointly retain me for a flat fee to speak to your child and find out what s/he wants. I also work with a social worker to find out what is in your child’s best interests and to help you develop a parenting plan.
Often children tell parents what they want to hear. I can tell you what your child really wants. I can make practical recommendations that can be re-visited as information changes. I can help you implement the recommendations. I can help you to craft a plan that best meets the child’s needs from the child’s perspective.
There is confidentiality in what the child tells me and I will share with you only that which your child wants me to disclose. It is comforting to your child to know that what s/he tells me won’t be shared unless they tell me its okay to do so (except in the case of abuse as the CAS must be notified).
You may have different aspirations for your children. You may have different approaches to discipline and parenting styles. Perhaps you have different parenting strengths and weaknesses. Your children are vulnerable and need your help to understand that you both have their best interests in mind. Your children deserve the best from you. How well are you responding to each of your children’s needs while they are adjusting to mom and dad’s separation/divorce? Is the conflict between mom and dad causing your child to become anxious? How can your children express how they are truly feeling? Often they are afraid to tell you how they really feel for fear they may hurt your feelings. Maybe your child is acting out at home or at school. Maybe this is their way of trying to tell you that they are hurting.
Your child might be worried about how your plans will affect them. How will it affect relationships with friends, participation in extra-curricular activities, relationship with other family members, moving away from neighbourhood friends or their school, travel time in the car, missed social events because of access visits. They may be saying “What about ME! Do you know how I really feel?”
I am not a parenting coach. I am not a counsellor. What I am is an advocate. I can be your child’s advocate. I will provide your child with a voice in your mediation and in the court proceedings so that you can make better decisions for your family. I can help your child be heard.
Written by Lynn Kirwin. Family law lawyer at Galbraith Family Law. To see Lynn’s bio click here. If you wish to book a consultation with Lynn please go to our website.

Are you curious what will happen to your wealth when your marriage comes to an end?

In Ontario, you must share the equity that you and your spouse collected during your marriage upon separation. Simply put, each of you adds up the total value of all your assets, less your debt, on the date of separation. You also get to deduct the assets less debt that you had on the date of marriage. The more assets you can prove you owned on the date of marriage; the more money you will save.

Whoever has more assets, pays the other to equalize it.

In other words, if you came into a marriage owning, a car, some RRSPs, maybe even some other property, those assets were not accumulated as a result of the marriage so you don’t have to share in the value of them with your spouse.

If the assets still exist on the date of separation, then any growth in their value is shared, since the increase in value occurred during your marriage.

There are some exceptions and other deductions but this is the process in a nutshell. The law is seldom simple.

We have helped hundreds of people just like you sort out their equalization issues. We can help you too. Please go to our website if you want a more detailed explanation of the equalization process. When you are ready, call or go to our website at www.Galbraithfamilylaw.com to book a consultation.

Do you want to represent yourself in your separation/divorce? Makes sense. You can save a lot of money. But you aren’t a lawyer. It can be a bit scary. We can support you in a variety of ways.

We can draft documents for you but you go to court on your own thus saving you money. We can offer legal advice and coaching in the background but you do the direct negotiations or represent yourself in court. Alternatively, we can go to court with you for just one or two steps in the process but you don’t retain us for the whole process.

Whatever help you need, we can craft a plan that will give you a leg up and save you money.

A clearly worded limited purpose retainer agreement is critical to ensure that we, at Galbraith Family Law, know our responsibilities and you know your responsibilities. Together, we agree what services will be provided. You aren’t signing a blank cheque for legal fees but you are getting help so that you can do your best.

We can help you understand the process options, court procedure, ensure that you meet filing deadlines, help you develop a compelling legal argument and advise you as to the likely range of outcomes. We can suggest the evidence you need and guide you through the maze of the law.

In the end, you are calling the shots but we help you do your best and save money in legal fees. You may not be a lawyer but with some help from us, you can achieve your goals.